China and the Freedom of Navigation

A “might makes right” approach is hardly a shining example to others.

By Mark J. Valencia for The Diplomat

March 23, 2016

The Diplomat recently published an article in twoparts by U.S. Navy Commander Jonathan G. Odom purporting to prove that China interferes with freedom of navigation in the South China Sea. The first dealt with his premises and the second with his “data.” Not only are his premises flawed but his “data” are also questionable. Let’s look at some of the problems with his argument and “evidence.”

In his first part setting out his assumptions, Odom begins by repeating the oft-stated generality that “[the South China Sea] is a strategic corridor for maritime trade carried throughout the globe.” China has never threatened commercial navigation. Moreover it is unlikely to do so in peacetime because much of that trade is to and from China. The U.S. is really concerned with “freedom of navigation” for its warships and aircraft engaged in intelligence, surveillance and reconnaissance (ISR) off China’s coast. But it (and Odom) are conflating this concern with freedom of commercial navigation, to garner support for its position and its opposition to China’s attempts to constrain these probes.

China certainly does object by word and deed to what it perceives as U.S. abuse of the right of freedom of navigation and threats to use force – a possible violation of the United Nations Charter – let alone UNCLOS. The activities of ISR aircraft like the EP-3 in 2001 and the Poseidon 8A just this past August, as well as other incidents involving the U.S. Navy vessels Bowditch, Impeccable and Cowpens, may have collectively included active “tickling” of China’s coastal defenses to provoke and observe a response, interference with shore-to-ship and shore-to-submarine communications, abusing the consent regime for marine scientific research, or tracking China’s new nuclear submarines for potential targeting. These are not passive intelligence collection activities commonly undertaken and usually tolerated by many states, but intrusive, provocative and controversial practices.

A second fundamental problem with Odom’s argument is the supporting rationale that “U.S. policy has long regarded much of UNCLOS to generally confirm existing maritime law” and that the U.S. government “[considers] much of the Convention to reflect customary law binding on all states [emphasis added].” This is misleading. First of all, his key word is much – that is, not all. What Odom neglects to mention is because the Convention was a “package deal,” non-ratifiers like the U.S. can not credibly or legitimately pick and choose which UNCLOS provisions they wish to abide by, deem them customary law, and unilaterally interpret them to their benefit. This is especially so regarding the EEZ regime, which the Convention introduces as sui generis and which, despite Odom’s opinions, does have some restrictions on “freedom of navigation” such as the duty to pay “due regard” to the rights of the coastal state including its marine scientific research consent and environmental protection regimes.

A third fallacy is Odom’s assumption that China and the U.S. have the same interpretation of the meaning of freedom of navigation and other terms in UNCLOS relevant to it that are not defined in the Convention. These terms include “other internationally lawful uses of the sea,” “abuse of rights,” ”due regard,” “peaceful use/purpose,” and “marine scientific research.” China and other ratifying states differ with the U.S. on their meaning and these differences are quite relevant to the limits of “freedom of navigation,” particularly for warships.

A fourth fallacy of Odom’s argument is that he ignores the dynamism of international law. It is not static, and the meaning of its terms changes over time in response to advances in technology and the practice of nations. China is not the only country that places restrictions on some foreign military activities in its EEZ and territorial sea. Indeed in Asia alone, India, Malaysia, and U.S. ally Thailand do not allow foreign military activities in their EEZs, and Indonesia, Taiwan and Vietnam require permission for foreign warships to enter their territorial seas. In Odom’s view, these restrictions may not be consonant with UNCLOS. But they are a political reality and an indication of state practice. They will not be resolved by some theoretical legal argument or process.

After constructing his straw man of assumptions Odom then proceeds in the second part of his article to present “data” that support his predictable conclusion.

First, Odom cites China’s “excessive” use of straight baselines along its South China Sea coast as evidence that China violates “freedom of navigation” rights. It is true that China’s baselines probably encompass more internal waters than it is entitled to. More than 60 countries worldwide, including almost all littoral East Asian states, have formally claimed baselines and so far the U.S. has protested about 27 of these declarations. The point is that state practice clearly favors a “liberal interpretation” of the Convention’s baseline provisions and China is certainly not extraordinary in claiming such baselines. This doesn’t make China legally right but it means that interpretation of these provisions is in flux. What it does do is show Odom’s bias in not providing the context of China’s claims.

Most of the rest of Odom’s “evidence” deals with incidents deriving from China’s restrictions on foreign warships – not non-state vessels. These include the requirement of foreign warships to obtain authorization prior to innocent passage in the territorial sea, security jurisdiction in its contiguous zone, and opposition to certain foreign military activities in its EEZ. These incidents hark back to the different interpretations of the Convention and its key terms as well as the question of U.S. credibility and legitimacy in unilaterally interpreting their meanings.

Odom cherry-picks a quote from China’s Ministry of Defense to claim that the “legal debate is over” – implying that China no longer opposes certain U.S. military activities in and over its EEZ. This is wishful thinking at its grandest. The quote in question goes as follows: “The People’s Liberation Army naval ships’ operation in waters outside the territorial seas of other countries is in line with international law and international practice. The Chinese side respect[s] the rights of maritime countries in accordance with international laws.” This may have been a poor translation or a “misspeak.” It is clear by word and action that China continues to believe that some of the U.S. ISR platforms are violating international law. Odom and readers should parse that quote carefully. What Chinese ships were doing in the U.S. EEZ was, at the most, passive listening. This is a far cry from what the U.S. ISR vessels and aircraft do in China’s EEZ. Yes, China “respects the rights of maritime countries in accordance with international law,” but China and the U.S. obviously disagree on what that law is and what it means.

Regarding China’s assertion of fisheries enforcement in “most of the South China Sea,” since China claims all of the Spratly features and some of them are islands entitled to 200 nm EEZs, China may be simply enforcing its resource jurisdiction. This is what other claimants are doing when they arrest China’s boats in their claimed EEZs. No country should be unilaterally fishing in disputed waters or enforcing jurisdiction in same. But it is a stretch to claim such actions as a violation of freedom of navigation. Again Odom takes the issue out of its context.

Finally, according to Odom, “China’s military has taken action to deny or impair freedom of navigation.” But the examples cited may have involved provocative military probes near “safety” zones established around artificial installations. Many countries establish safety and “military warning zones” around sensitive installations and vessels conducting military exercises. Again that doesn’t make what China is doing legally “right” but it does make it ordinary state practice. Odom also tries to transfer “lessons learned” from China’s declaration of an ADIZ in the East China Sea to the South China Sea where it has yet to make any such declaration. Again this shows the extent that Odom will go to prove his point.

There is a saying in science about data – “garbage in garbage out.” In this case, Odom not only uses questionable data but also faulty assumptions in the first place. Law and politics are not natural science.

Odom’s conclusion is that China has “attempted to restrict the freedom of navigation interest … in the waters of the South China Sea.” I would reword this conclusion to say “China has made some questionable claims and actions in the South China Sea. China and the U.S. have very different interpretations of the meanings of key terms in the Convention related to freedom of navigation. Actions by both based on their interpretations could cause conflict.”

It is clear that the debate will continue. However, without U.S. ratification of the Convention and therefore access to its arbitration mechanisms, it has become a lone voice in the wilderness of relevant international law. Instead the U.S. has to resort to threats, shows of force and perhaps eventually even use of force. This “might makes right” approach is not a shining example of international behavior for others – including China – to follow.

Mark J. Valencia is an Adjunct Senior Scholar at the National Institute for South China Sea Studies, Haikou, China.